Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v. Gomez-Herrera, has held that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so. (Although there's potentially an argument that the Supreme Court's decision in Spears constitutes intervening Supreme Court precedent that abrogates Gomez-Herrera.) The First Circuit has decided otherwise, expressly disagreeing with Gomez-Herrera's reasoning.

As Professor Berman pointed out earlier this week, the Third Circuit has now weighed in on the matter: United States v. Arrelucea-Zamudio, No. 08-4397 (Sept. 14, 2009) (Sloviter, Ambro, Jordan). Siding with the First Circuit, Arrelucea-Zamudio points out a significant flaw in Gomez-Herrera:

Paradoxically, the Fifth Circuit Court case, Gomez-Herrera, 523 F.3d 554, which relied on the congressional policy rationale to differentiate the fast-track issue from Kimbrough, appears to have curtailed a district court’s sentencing discretion post-Kimbrough more than it had before that decision. The Court at first stated that it

"has never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on th[e] basis [of a fast-track disparity]. Rather our cases have only concluded that a district court is not required to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs to prevent a sentence from being unreasonable."

Gomez-Herrera, 523 F.3d at 558 n.1 (internal quotations and citations omitted). Yet it went on to say that post-Kimbrough “it would be an abuse of discretion for the district court to deviate from the Guidelines on the basis of sentencing disparity resulting from fast track programs that was intended by Congress. . . . [This deviation] would result from an erroneous view of the law.” Id. at 563 n.4 (citation omitted). In light of Kimbrough, this statement strays from the standard set by the Supreme Court. In its sentencing cases post-Booker, the Court has been clear that a sentencing judge has discretion to impose a sentence grounded in the § 3553(a) factors regardless whether it varies from the Guidelines range. See, e.g., Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456 (2007); Gall, 128 S. Ct. at 597.

Which is not to say that the Third Circuit will allow district courts to vary willy-nilly on the basis of fast-track disparities: "A generalized argument to a district court that a defendant should be sentenced below the Guidelines range because of fast-track disparity is alone not sufficient to justify such a variance." That's because "[t]he fast-track disparity applies to a segment of immigration defendants that are unfortuitously prosecuted in non-fast-track districts (but would have qualified for fast-track treatment), whereas the crack/powder cocaine disparity applies to crack defendants across-the-board." Consequently, "[t]o justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district."

The Third Circuit's opinion notes that the Ninth and Eleventh Circuits have gone along with Gomez-Herrera, so we've got at least a 3-2 split on the issue. Perhaps the Supreme Court will decide it's time to step into the fray and resolve this split. There's no shortage of cert petitions presenting the issue.

Kimbrough's Not Just For Crack, and How to Vary Based On Policy Disagreements with Guidelines

United States v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (King, Stewart, Southwick)

In case there was any doubt left after Mondragon-Santiago as to whether Kimbrough allows a district court to vary from the advisory Guidelines range based on policy disgreements with guidelines other than the crack guidelines, Simmons makes things crystal clear:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar. In Kimbrough, the Court referred to the following concession made by the government: “the Guidelines are now advisory and . . . , as a general matter, courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Kimbrough, 128 S. Ct. at 570 (emphasis added) (internal quotation marks omitted). The Court added, however, that the appellate court may need to conduct a “closer review” if the judge has varied from the Guidelines because of a belief that the resulting sentence range, even in an unexceptional case, is inconsistent with Section 3553(a) factors. Id. at 575.

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal. See id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. MIAMI L. REV. 1115, 1136 (2008). The Court also required a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

So how does this policy disagreement work? The court provides a helpful recipe:

Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.

Pop quiz: what kind of error is a district court's mistaken belief that it cannot vary based on policy disagreements with the Guidelines? Procedural error. Don't forget to object if the district court makes that mistake in one of your cases, lest you get saddled with plain error review on appeal.

More On Reasonableness Review, Plain Error, Failures to Explain, Policy-Based Variances, and the Presumption of Reasonableness

United States v. Mondragon-Santiago, No. 07-41099 (5th Cir. Mar. 26, 2009) (King, Dennis, Elrod)

Our circuit's really been on a sentencing tear lately, issuing a lot of opinions explaning the ins-and-outs of reasonableness review. This one's especially dense, covering:

• a failure to adequately explain a within-Guidelines sentence (which nevertheless doesn't merit vacation of the sentence on plain error review),
• a circuit split over how to apply the third plain error prong in sentencing appeals,
• district courts' ability to vary from the Guidelines based on policy disagreements, and
• whether a guideline's lack of empircal basis deprives the resulting within-Guidleines sentence of a presumption of reasonableness.

Let's set the stage: Mondragon pleaded guilty to illegal reentry. A prior aggravated assault conviction earned him a 16-level COV bump, and several criminal history points, ultimately producing a Guidelines range of 46 to 57 months. Mondragon sought a below-Guidelines sentence, arguing 1) that the range overstated the seriousness of his criminal history and "exaggerated his propensity to commit crimes[,]" and 2) several facts relevant to § 3553(a) considerations also warranted a lower sentence.

The district court heard these arguments, engaged in a brief colloquy with defense counsel regarding Mondragon-Santiago’s failure to observe the conditions of his probation, and then allowed the defendant to speak for himself. After hearing Mondragon-Santiago state that he needed to be with his family, the district court asked him how he would accomplish that goal without entering the United States illegally. Mondragon-Sandiago responded that he would not be able to see his family if the government would not let him enter the country. The district court suggested that maybe his family could visit him, and then imposed a sentence of fifty months of imprisonment followed by three years of supervised release. Mondragon-Santiago’s attorney objected on the grounds that the sentence was “greater than necessary.” The district court overruled the objection. Mondragon-Santiago appealed.

Procedural Error: District Court's Failure to Adequately Explain Sentence Was Error, That Error Was Plain, But Mondragon Did Not Show That the Error Affected His Sentence

Mondragon argued that the district court's explanation of the sentence was inadequate. But what standard of review to apply? After the sentence was imposed, Mondragon objected that it was greater than necessary. But he did not object to the inadequate explanation of the sentence. Hence, plain error review of this claim of procedural error. (So remember folks: an objection that the sentence is greater than necessary will not preserve a claim of procedural error.)

Moving on to the first prong of plain error review, the court found the district court's explanation inadequate:

In Rita, Rodriguez, and Gomez-Herrera, the sentencing court acknowledged that § 3553(a) arguments had been made and devoted a few words to rejecting them. In Bonilla, the sentencing court referred to arguments previously made and to the report, thereby incorporating that reasoning into her decision, in which she explicitly noted her consideration of the sentencing factors. Unlike in these cases, the district court in this case did not give any reasons for its sentence beyond a bare recitation of the Guideline’s calculation. This despite the fact that Mondragon-Santiago raised arguments before the district court concerning his family, his work history, and his prior convictions, all of which are relevant considerations under § 3553(a). The district court did not mention Mondragon-Santiago’s arguments, and the court’s statement of reasons did not further illuminate its reasoning. The total explanation of the court was as follows: “This is an Offense Level 21, Criminal History Category 3 case with guideline provisions of . . . 46 to 57 months. The defendant is committed to the Bureau of Prisons for a term of 50 months. He will be on supervised release for a term of three years . . . .” The district court then overruled without explanation Mondragon-Santiago’s objection that the sentence was “greater than necessary.” We conclude that the district court failed to adequately explain its reasons for the sentence imposed as required by § 3553(c), which is error under Rita.

What's more, the error was plain because "the law requiring courts to explain sentences is clear." But did it affect Mondragon's substantial rights? The Mares standard, which the Fifth Circuit borrowed from the Eleventh, requires "the defendant to show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon argued "that the district court’s error affected his substantial rights because it makes meaningful appellate review impossible." Although two circuits have adopted that argument when reviewing outside-the-Guidelines sentences, "our circuit precedents foreclose this argument so far as within-Guidelines sentences are concerned." Mondragon could not show that a better explanation would have changed his sentence, so the error did not affect his substantial rights.

(Note that the court highlights a possible circuit split on the third plain error prong. The Fifth Circuit requires the error to affect the outcome, but according to the court, "other circuits have relaxed this requirement in the sentencing context[.]" Query whether the Supreme Court's recent decision in Puckett has any effect on that split.)

Substantive Reasonableness: District Court May Vary from Illegal Reentry Guideline Based on Policy Disagreement, But That Guideline's Lack of Empirical Basis Doesn't Deprive It of a Presumption of Reasonableness

Mondragon also asked the court for a summary remand so that the district court could reconsider his sentence in light of Gall and Kimbrough, which were decided after he was sentenced. Those cases make clear that a court may disagree with the Guidelines based on policy, and also when the particular circumstances warrant it (even if the circumstances aren't extraordinary). Prior to Gall and Kimbrough, the Fifth Circuit had held both that a sentencing court may not vary from the Guidelines based on a factor that the Guidelines already take into account (Sanchez-Ramirez), and that a district court may not vary based on policy disagreements with the Guidelines (Tzep-Mejia, Rodriguez-Rodriguez). The court acknowledges that "[w]ith some justification, [Mondragon] claims that the district court was not free to accept his argument that the Guidelines double-counted his prior felony conviction because the court was not free to depart from the Guidelines for policy reasons." Nevertheless, the court concludes that Mondragon "fail[ed] to show how this influenced his case[,]" because nothing in the record indicated that the district court wanted to vary on policy grounds, but felt constrained by then-controlling precedents. "Thus, on this record, we refuse to convert a hypothesis into evidence of an abuse of discretion. Accordingly, Mondragon-Santiago is not entitled to relief on that basis."

(That's very questionable. It would make sense if the court were reviewing the substantive reasonableness of Mondragon's sentence for plain error, but it wasn't. Mondragon preserved his argument, and the court reviewed for abuse of discretion. If the district court was operating under what we now know were incorrect precedents, don't we have more than a merely hypothetical abuse of discretion, particularly given the district court's clearly erroneous failure to address the arguments Mondragon made for a lower sentence?)

Mondragon next argued that a sentence imposed under guideline §2L1.2 should not enjoy a presumption of reasonableness, because, just like the crack guideline at issue in Kimbrough, the illegal reentry guideline lacks an empircal foundation. The court, as it has done before, refused to read Kimbrough as having anything to do with the presumption of reasonableness: "Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true: by the time an appeals court reviews a Guidelines sentence, both the Sentencing Commission and the district court have fulfilled their congressional mandate to consider the § 3553(a) factors and have arrived at the same conclusion."

But significantly, the court recognized that Kimbrough is more than it's cracked up to be, as it "allow[s] district courts, in their discretion, to consider the policy decisions behind the Guidelines, including the presence or absence of empirical data, as part of their § 3553(a) analyses." Also, "[i]n appropriate cases, district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly."

Of course, that brings up the elephant in the living room: what about varying based on fast-track disparity? The Fifth Circuit held that such variances are verboten in United States v. Gomez-Herrera. Look at it this way: Gomez-Herrera was decided after Kimbrough, but before Spears, in which the Supreme Court said, "Remember Kimbrough? We meant it." So in light of Spears and Mondragon-Sanchez, it may be time to start taking another run at the fast-track-disparity issue (not to mention the fact that there's a circuit split on it).

District Court May Categorically Reject Crack Guidelines Based Solely on Policy Disagreement, Even Without Individual Mitigating Circumstances

Spears v. United States, No. 08-5721 (U.S. Jan. 21, 2009) (per curiam)

You thought it was already clear from Kimbrough that a district court may categorically reject the crack guidelines based solely on the court's policy disagreement with the crack/powder ratio? So did a majority of the Supreme Court, hence this summary reversal of the Eighth Circuit's contrary understanding of Kimbrough.

In this case, Spears was convicted of participating in a large-scale crack and powder cocaine conspiracy. The district judge thought the then-100:1 crack/powder ratio was excessive, so he recalculated the guidelines using a 20:1 ratio and ultimately sentenced Spears to the mandatory minimum of 20 years' imprisonment. On cross-appeal, the Government argued that the district court could not simply subsitute its own ratio for the Guidelines' ratio. The Eighth Circuit agreed, and vacated the sentence. Spears petitioned for cert, and the Supreme Court GVR'ed for reconsideration in light of Kimbrough. The Eighth Circuit again vacated the sentence, holding, inexplicably, that the district court could not categorically reject the Guidelines' ratio and replace it with a 20:1 ratio.

Spears again sought cert, with the result being this summary reversal that essentially says, "Remember Kimbrough? We meant it." The Court made crystal clear that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines[,]" adopting the "correct interpration of [Kimbrough] . . . offered by the dissent in Spears II:

"The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of §3553(a),’ and is ‘at odds with §3553(a).’ The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines—its policy view that the 100-to-1 ratio creates an unwarranted disparity." 533 F. 3d, at 719 (opinion of Colloton, J.) (citations omitted).

Justice Kennedy would have granted cert and set the case for oral argument, rather than summarily reversing the Eighth Circuit. Justice Thomas dissented without explanation. Chief Justice Roberts, joined by Justice Alito, dissented largely on his view that summary reversal was inappropriate given the lack of a circuit split on what he viewed as an issue "arguably distinct" from that in Kimbrough (whether a district court can categorically adopt its own ratio, as opposed to simply determining that the 100:1 ratio would produce an excessive sentence in an individual case), and that the issue should be allowed to percolate in the lower courts before the Court steps in to settle their hash.

The majority responded that the Chief's characterization of Kimbrough's holding---requiring an individualized determination in addition to a policy disagreement before rejecting the crack Guidelines---"was [actually] the Government's position in Kimbrough, which did not prevail." And as for percolation,

The dissent says that "Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period." True enough—and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible. Finally, the dissent points out that other courts have followed the Eighth Circuit’s course, see United States v. Russell, 537 F. 3d 6, 11 (CA1 2008); United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008). Both of those courts, like the Eighth Circuit, seized upon the language from Kimbrough quoted above in order to stand by the course they had adopted pre-Kimbrough—and in the case of the First Circuit, despite this Court’s having vacated and remanded, in light of Kimbrough, the prior First Circuit judgment which had established that course. See Pho v. United States, 552 U. S. ___ (2008). If the error of those opinions is, as we think, evident, they demonstrate the need to clarify at once the holding of Kimbrough.

(By the way, if it wasn't already obvious from the rest of the opinion, that paragraph makes it pretty easy to guess the author.)

Finally, note that, although the issue arises here in the context of the crack guidelines, the rationale of Kimbrough should apply with equal force to any other guidelines that lack an empircal basis, and there's lots of those.

And if you're interested in a behind-the-scenes look at the saga that was Spears, start here.